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Fair Housing

What the new criminal background checks mean for real estate

The Fair Housing Act provides guidance regarding homebuyer and renter background checks.

home buyers

If you consider that that nearly a third of Americans, 100 million people in all, have a criminal record (with an additional 650,000 released from prison each year) it kind of justifies some seeking to run a criminal background check on a potential client for sales or rental purposes.

At the recent [REALTORS] Legislative Meetings & Trade Expo in Washington, D.C., a forum titled, “Criminal Background Checks, Fair Housing Compliance and You” posited that, “The three things [realtors] need to do when developing a program are have consistent procedures, uniform standards, and an explanation for criminal background check programs.”

Just who is protecting whom?

The Department of Housing and Urban Development (HUD) published the Fair Housing Act guidance on April 4 that has raised concerns for housing providers who use criminal history screening processes to make decisions about sales, rentals financing and other real estate activity.

Consider this: minorities are a protected class under the Fair Housing Act. Persons with criminal records are not. So are those individuals being biased? The interpretation of HUD’s guidance is that creating arbitrary or blanket criminal-based policies and restrictions could potentially violate the Fair Housing Act.

Do’s and Don’ts

For its part, the National Association of Realtors (NAR) has summarized HUD’s guidance in a “Do’s and Don’ts” guide, with tips that urge real estate professionals to uniformly consider criminal history, regardless of an individual’s protected class status, while avoiding policies that exclude anyone based on arrest records alone. Selected examples can be seen below:

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Do’s Don’ts
Create tailored criminal history-based policies/practices. Don’t create arbitrary or overly-broad criminal history-based policies/practices.
Be sure to have clear, specific reasoning for the criminal history-based policy/practice that can be supported by evidence. Don’t maintain a policy/practice, or any portion thereof, that does not serve a substantial, legitimate, nondiscriminatory interest.
Exclude individuals only based on criminal convictions that present a demonstrable risk to resident safety or property. Don’t create exclusions based on arrest records alone.
Consider the nature and severity of an individual’s conviction before excluding the individual based on the conviction. Don’t create a blanket exclusion of any person with any conviction record.

Granted, everyone has a right to live wherever they can afford, and that means strong support for the Fair Housing Act and its mission. The better understanding that realtors have of the rules and regulations affecting their businesses allow them to further strengthen the communities they serve, while ensuring equal housing opportunities for the people who live there.


Written By

Nearly three decades living and working all over the world as a radio and television broadcast journalist in the United States Air Force, Staff Writer, Gary Picariello is now retired from the military and is focused on his writing career.

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